2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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### 1

CLD

- 245 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 3

- 2049

___________ IN RE: EPHRAIM BARR , Petitioner

____________________________________ On a Petition for Writ of Mandamus from the United States Dis trict Court for the Eastern District of Pennsylvania (Related to E.D. Pa. Crim. No. 2

- 05

- cr - 00347

- 001)

____________________________________ Submitted Pursuant to Rule 21, Fed. R. App. P.

May 16, 2013 Before: RENDELL, JORDAN and SHWARTZ , Circuit Judges

( Opinion file d : June 03, 2 013 )

_________ OPINION

_________ PER CURIAM Ephraim Barr filed this petition for a writ of mandamus seeking an order compelling the District Court to rule on claim s that he raised in a pro se motion to vacat e his sentence. For the reasons that follow, we will deny the petition. Barr was convicted by a jury in the District Court of conspiracy, identity theft, and uttering counterfeit securities and was sentenced to eighty

- seven months of

### 2

imprisonment. 1 

### Thi s Court affirmed his conviction and sentence on direct appeal

. United States v. Barr , 349 F. App’x 704, 706 (3d Cir. 2009)

. Barr then filed a pro se motion under 28 U.S.C. § 2255 in November 2009 , raising several claims of ineffective assistance of coun sel. Barr moved to amend his motion several months later by adding a claim based on Flores

- Figueroa v. United States , 556 U.S. 646 (2009) , and he requested counsel. Counsel was appointed, who filed an amended § 2255 motion in November 2010, rais ing only the Flores

- Figueroa claim. Shortly thereafter, Barr asked the court to remove counsel a nd allow him to proceed pro se because he disagreed with counsel’s decision to proceed with only the Flores

- Figueroa claim. The District Court dismissed the motion in February 2011 and ordered counsel to contact Barr and resolve the issues regarding the § 2255 motion. Almost two years later, in December 2012, Barr again asked the court to remove counsel and appoint new counsel, citing other disagreements. The motion was denied after a hearing. Shortly thereafter, Barr retained private counsel. Private counsel was given an opportunity to file a supplemental brief regarding the § 2255 motion, but did not do so. The District Court denied the counseled § 2255 motion

– which raised only the Flores

Figueroa claim

– in February 2013. Barr then filed the present mandamus petition seeking to compel the District Court to rule on the claims he originally presented in his pro se § 2255 motion

.

1 

### Although Barr completed his prison term and was serving a term of supervised relief, he was recently remanded to custody for violating the conditions of release.

### 3

Mandamus is a drastic remedy ava ilable only in the most extraordinary of circumstances. In re Diet Drugs Prods. Liab. Litig. , 418 F.3d 372, 378 (3d Cir. 2005). To demonstrate that mandamus is appropriate, a petitioner must establish that he has a “clear and indisp utable” right to the issuance of the writ and that he has “no other adequate means to obtain the desired relief.” Madden v. Myers , 102 F.3d 74, 79 (3d Cir. 1996). Barr has failed to show that he has no other adequate means to challenge the District Court ’s consideration of the counseled § 2255 motion, rather than his pro se motion. In fact, he has already availed himself of the proper means for seeking relief: his pending appeal from the District Court’s order d enying the § 2255 motion, docketed at C.A. No. 13

- 176 9. Any claims of error regarding the District Court’s disposition of the § 2255 motion may be set forth in an application for a certificate of appealability, should Barr choose to file one, in th e pending appeal. He may not , however, use a

ma ndamus petition as a substitute for the appeals process. See In re Briscoe , 448 F.3d 201, 212 (3d Cir. 2006). W e will therefore deny the petition. The motions requesting this Court to serve the petition and supplemental filings on the District Court an d “parties involved” are denied as u n necessary .